Towns in Great Bay region sue state, DES

EXETER — Exeter and four other communities are taking the battle over nitrogen limits for treated wastewater to court.

Aaron Sanborn

EXETER — Exeter and four other communities are taking the battle over nitrogen limits for treated wastewater to court.

The "Great Bay Coalition" communities of Exeter, Portsmouth, Newmarket, Dover and Rochester filed suit in Merrimack Superior Court against the state and the state Department of Environmental Services on March 23, claiming DES failed to conduct a formal and inclusive public rule-making process, as required by law, to establish scientifically defensible water quality standards in the Great Bay estuary.

This suit is the newest chapter in a contentious battle over nitrogen levels in Great Bay.

Representatives from the coalition's communities have said on multiple occasions that the DES dismissed information that strongly suggested the health of the Great Bay estuary can be protected by limiting wastewater treatment plants' nitrogen discharges to 8 milligrams per liter, rather than the 3 milligrams per liter being considered by DES and the federal Environmental Protection Agency.

To date, draft discharge permits have been issued to Exeter, Newmarket and Dover and all of them call for a limit of 3 milligrams per liter, which is considered the limit of technology and most costly to implement.

Exeter is expected to be the first community to receive its final permit from the EPA and the coalition's communities believe it will be the same as limit as the draft permit, according to Dean Peschel, the environmental consultant from Dover representing the communities.

"We haven't heard anything to suggest that it will be anything other than a 3," Peschel said.

The central issue in the suit is that DES produced a document in June 2009 that claimed the eelgrass resource in the estuary was diminishing because nitrogen levels had increased over the past several decades. According to DES' theory, these nitrogen levels caused increased phytoplankton growth and a loss of water clarity, adversely affecting eelgrass growth.

However, the coalition's communities believe "there is no scientific support for this theory in the data from the estuary." In addition, they claim the communities along the Great Bay were never given a chance to provide feedback or present their own data before DES produced the document.

While the EPA issues the final permits, Peschel explained that they are using the information from DES as a guide.

The coalition communities also claim in the suit that DES is proposing arbitrary water quality standards and has "disregarded sound scientific studies that demonstrate that less restrictive limits on wastewater discharges would be protective of the estuary."

Communication between the communities and DES has deteriorated over the past few months, with the coalition communities claiming DES turned its back on a memorandum of agreement between the two sides that called for DES to conduct a reasonable and open scientific peer review of the science used to develop nutrient criteria.

Peschel said the lawsuit became necessary when it became apparent that DES was not "willing to listen carefully or engage in a scientific conversation."

A major concern for the coalition communities is the cost of upgrading their respective wastewater treatment plants.

"If these unlawful and unreasonably regulatory actions are not declared invalid, the petitioners will be forced to collectively spend more than $100,000,000 in (publicly owned treatment works) improvements that are unnecessary to preserve the health of the estuary," the suit states.

DES spokesman Jim Martin said the agency is reviewing the lawsuit and is not prepared to make a statement about it.

Ultimately, the communities are hoping the court will throw out DES's water quality standards for the Great Bay estuary and order a public process for coming up with new standards.

According to John Peltonen, the attorney representing the coalition communities, a more public process will give the coalition communities another opportunity to explain their adaptive management proposal.

Under that proposal, the communities would immediately work towards achieving a discharge limit of 8 milligrams per liter, which would then stay in place for 10 years, giving the communities a chance to monitor conditions and improve the estuary through other strategies, like bioremediation projects such as oyster replenishment.

"It's essential that all of us work together to get this right," Peltonen said. "No one wants the Great Bay damaged but we have to get it right and make sure we're addressing the right issues."

While increased levels of nitrogen in the estuary are blamed for significant declines in the eelgrass and oyster populations, it's estimated that 70 percent of the problem comes from non-point sources, such as stormwater runoff, fertilizers and septic tanks.

Exeter Town Manager Russ Dean expressed the town's support for the lawsuit and said the town is "looking to preserve its place in the process along with the other communities."

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